Mocenigo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for citizenship by descent by Marco and Oscar Mocenigo, who were born outside of Australia. The dispute arose because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused their application, asserting that their mother, Ms Vivien Passerini, was not an Australian citizen at the time of their births. The Administrative Appeals Tribunal (AAT) was tasked with reviewing this decision.

The central legal issues before the Tribunal were whether Ms Passerini had lost her Australian citizenship by deriving Italian citizenship from her father in 1972, and whether such a loss could occur without formal notification to the Australian government. The Tribunal also had to consider the interaction between Australian law, specifically the *Nationality and Citizenship Act 1948* (the 1948 Act), and Italian law as it stood in 1972, as well as the implications of the 1948 Act's provisions regarding the acquisition and loss of citizenship.

The Tribunal reasoned that while the Respondent argued that Ms Passerini lost her Australian citizenship under section 17 of the 1948 Act due to acquiring another nationality, the Applicants contended that section 18, concerning renunciation, was more relevant. The Tribunal noted that Italian law at the time, specifically Law no. 555/1912, allowed for the derivation of citizenship, and that Ms Passerini was registered as an Italian citizen in 1972. However, the Tribunal also considered expert evidence suggesting that renunciation of citizenship must be made personally and voluntarily to be valid. Crucially, the Tribunal found that Ms Passerini never personally renounced her Australian citizenship and that the Australian government continued to issue her passports and recognise her citizenship until 1992, despite her deriving Italian citizenship. The Tribunal concluded that the gender and Anglo bias inherent in the 1948 Act, coupled with the Department's actions, meant that Ms Passerini's Australian citizenship was not validly lost in 1972.

Consequently, the Tribunal set aside the delegate's decision to refuse the Applicants' citizenship applications. The Tribunal remitted the matters to the Respondent for reconsideration with a direction that the Applicants are eligible to become Australian citizens by descent, as their mother, Ms Vivien Passerini, was an Australian citizen at the time of their births.